Citation Nr: 9915969
Decision Date: 06/10/99 Archive Date: 06/21/99
DOCKET NO. 93-09 496A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Neil T. Werner, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 31, 1963, to
April 1, 1969, and from April 3, 1969, to January 3, 1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1992 decision of the
Pittsburgh, Pennsylvania, Regional Office (RO) of the
Department of Veterans Affairs (VA) which denied the
veteran's claims of service connection for PTSD and a non-
service-connected disability pension. Subsequently, by a
February 1996 decision, the RO granted the veteran's claim
for a non-service-connected disability pension. Therefore,
this issue is no longer in appellate status.
FINDING OF FACT
Competent medical evidence showing a current diagnosis of
PTSD has not been presented.
CONCLUSION OF LAW
The veteran's claim of service connection for PTSD is not
well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991);
38 C.F.R. §§ 3.303, 3.304(f) (1998).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran asserts, in essence, that he developed PTSD as a
result of stressful events experienced while stationed in the
Republic of Vietnam. In this regard, the Board notes that,
in order to grant service connection for PTSD, there must be
medical evidence establishing a clear diagnosis of the
condition, credible supporting evidence that the claimed in-
service stressor(s) actually occurred, and a link,
established by medical evidence, between current
symptomatology and the claimed in-service stressor(s).
38 C.F.R. § 3.304(f) (1998); Gaines v. West, 11 Vet. App. 353
(1998). The United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals
prior to March 1, 1999) (Court) has addressed these
requirements and has held that the evidence necessary to
establish the occurrence of a recognizable stressor during
service to support a claim of entitlement to service
connection for PTSD will vary depending on whether or not the
veteran was engaged in combat with the enemy. Zarycki v.
Brown, 6 Vet. App. 91 (1993), citing Hayes v. Brown,
5 Vet. App. 60 (1993), Hamilton v. Derwinski, 2 Vet. App. 671
(1992), (appeal dismissed on other grounds, 4 Vet. App. 528
(1993)). If the claimed stressor is related to combat,
evidence that the veteran engaged in combat or that the
veteran was awarded the Purple Heart Medal, Combat Infantry
Badge or similar combat citation will be accepted, in the
absence of evidence to the contrary, as conclusive evidence
of the in-service stressor. 38 C.F.R. § 3.304(f) (1998).
It should also be pointed out that a person who submits a
claim for VA benefits has the burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991). Only if the claimant meets this
burden does VA have the duty to assist him in developing the
facts pertinent to his claim. Epps v. Gober, 126 F.3d 1464,
1468-69 (Fed. Cir. 1997). If the claimant does not meet this
initial burden, the appeal must fail because, in the absence
of evidence sufficient to make the claim well grounded, the
Board does not have jurisdiction to adjudicate the claim.
Boeck v. Brown, 6 Vet. App. 14, 17 (1993).
Initially, the Board will address the issue of whether the
veteran has presented medical evidence of a diagnosis of
PTSD. 38 C.F.R. § 3.304(f) (1998). This is required, in
part, because a claim of service connection may not be
considered well grounded without evidence of current
disability. Caluza v. Brown, 7 Vet. App. 498 (1995).
VA treatment records, dated from January 1990 to May 1992, as
well as a March 1997 Vet Center letter, have been received by
the RO. The treatment records show multiple hospitalizations
for detoxification programs. They also included diagnoses of
polysubstance abuse (including alcohol, opiates, cocaine, and
Valium) and manipulative personality behavior. See VA
treatment records dated in July 1991, August 1991, September
1991, and April 1992 and VA hospitalization records for the
periods April 1990 to May 1990, July 1991, September 1991,
and May 1992. However, these voluminous medical records do
not include a diagnosis of PTSD.
Private treatment records, dated from October 1991 to April
1995, as well as July 1991, August 1991, and March 1992
depositions of private physicians, were also obtained by the
RO. However, these records primarily refer to diagnoses,
and/or treatment for disabilities unrelated to the current
issue on appeal. An October 1992 record shows that the
veteran underwent detoxification for opiate addiction while
hospitalized for another problem. Additionally, a May 1992
record shows the veteran was diagnosed with drug abuse.
Tellingly, these records also fail to include a diagnosis of
PTSD.
Additionally, the veteran filed a November 1991 award from
the Social Security Administration (SSA) that reports he was
found disabled as of September 1990. However, while the SSA
examiner reported that the veteran was depressed, and had
some homicidal feelings towards the Vietnamese people, the
SSA worksheet only shows that the veteran was diagnosed with
a personality disorder and substance addiction disorder.
Moreover, the SSA's grounds for finding the veteran disabled
included a severe substance abuse disorder, not PTSD.
Furthermore, the record on appeal shows that the veteran
appeared for VA examinations in May 1992 and August 1997.
However, these examiners also failed to provide the veteran
with a diagnosis of PTSD. Specifically, the May 1992
examiner diagnosed the veteran with opioid, cocaine, and
alcohol dependence. He also opined that VA needed to rule
out PTSD, a fictitious disorder with physical symptoms,
malingering, and an antisocial personality disorder. The
August 1997 VA examiner, after reviewing the veteran's
records and interviewing the veteran, also diagnosed the
veteran with opiate, cocaine, and alcohol dependence. He
also opined that VA needed to rule out malingering and an
antisocial personality disorder. The examiner further opined
that psychiatric testing of the veteran appeared to be
consistent with a profile of exaggeration of symptoms and not
consistent with his presentation. The examiner indicated
that, since the veteran's trauma could not be verified, the
first criteria for PTSD could not be fulfilled. More
importantly however, the examiner reported that, while the
veteran claimed to have symptoms related to PTSD, there was
no consistent evidence to warrant a diagnosis of PTSD.
What is significant about the evidence described above is
what it does not include. None of the clinical assessments
includes a diagnosis of PTSD. The Board recognizes that VA
examiners reported that the veteran was to be evaluated for
PTSD, that PTSD had to be ruled out and/or he had PTSD like
complaints (i.e., nightmares, flashbacks, hypervigilance,
startled response, avoidance behaviors, and sleep
disturbance). See July 1991 VA treatment record, May 1992 VA
examination report, March 1997 VetCenter Letter, and August
1997 VA examination report. Additionally, a Vet Center
therapist reported that the veteran himself had indicated
that he had several PTSD symptoms that he related to Vietnam.
However, the salient point to be made is that none of the
foregoing examiners diagnosed the veteran with PTSD.
Next, the Board finds that, to the extent that the veteran
has offered his own opinion that he has PTSD because of his
experiences in Vietnam, he has not been shown to be competent
to provide the evidence necessary to make his claim of
service connection for PTSD well grounded. See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown,
5 Vet. App. 211 (1993) (persons without medical expertise are
not competent to offer medical opinions.); Grottveit v.
Brown, 5 Vet. App. 91 (1993). Furthermore, lay assertions of
medical causation cannot constitute evidence to render a
claim well grounded. See Grottveit, at 93.
The Board finds that, given the absence of a diagnosis of
PTSD, a grant of service connection is not warranted. This
is so despite suggestions in the record that the veteran has
symptoms consistent with PTSD. Having such symptoms does not
equate to having PTSD as recognized by practitioners of
psychiatry. Even the examiner who indicated that the veteran
had such symptoms did not diagnose PTSD. Therefore, the
veteran has not met his burden of presenting a well-grounded
claim.
It has also been suggested in a November 1998 informal
hearing presentation that the Board should determine whether
the RO complied with M21-1, Part III, 1.03(a) (Change 50)
(Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48)
(Aug. 5, 1996). The provisions of M21-1 Part VI, 2.10(f)
provide that "the duty to assist will prevail while
development is undertaken." A careful reading of this
provision clearly shows the initiation of this
"development" is predicated on the claim being
"potentially plausible on a factual basis." Essentially,
"potentially plausible on a factual basis" means the claim
is well grounded. Epps, supra. Consequently, development is
undertaken pursuant to M21-1 Part VI, 2.10(f) only after
the veteran has presented a well-grounded claim. As the
veteran has not done so here, M21-1 Part VI, 2.10(f) is not
applicable to his case.
M21-1 Part III, 1.03(a) provides that "[b]efore a decision
is made about a claim being well-grounded, it will be fully
developed." However, only when a claim is well grounded
does VA have an obligation to assist the claimant in
"developing the facts pertinent to the claim." Robinette
v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added)
(referring to evidentiary development required by the duty to
assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil
v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the
evidentiary development referred to in 38 U.S.C.A. § 5107(a),
the provisions of M21-1, Part III, 1.03(a) refer to
development of the claim. The requirement to fully develop a
claim - as compared to development of the evidence underlying
the claim - merely demands that VA ensure that the veteran
has not filed a defective or incomplete application. See
38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78.
See 38 C.F.R. §§ 3.1(p), 3.160(a) (1997)(defining a claim as
an application for VA benefits); see also M21-1, Part III,
1.01(a) (discussing development of pertinent facts
"concerning a well-grounded claim"); M21-1, Part VI,
2.10(f) (discussed, supra); compare M21-1, Part III,
2.01(c) (during initial screening stage of claims processing,
the RO shall review all applications and evidence immediately
to determine if "a claim" is incomplete and requires
"further development"). Indeed, M21-1, Part III, 1.03(a)
relies upon Grottveit v. Brown, 5 Vet. App. 91 (1993), in
which the Court stated that, "[i]f the claim is not well
grounded, the claimant cannot invoke the VA's duty to assist
[under 38 U.S.C.A. § 5107(a)] in the [evidentiary]
development of the claim." Grottveit at 93, citing
38 U.S.C.A. § 5107(a). Therefore, until a veteran has
submitted a well-grounded claim, VA is under no duty to
assist the veteran in establishing the evidentiary elements
of his claim.
In other words, the requirement to "fully develop" a claim
pursuant to M21-1, Part III, 1.03(a) is not identical to
the duty to assist which arises after a well-grounded claim
has been submitted; instead, it appears to merely reiterate
the duty to inform under 38 U.S.C.A. § 5103. Consequently,
ensuring that a claim is "fully developed" under M21-1 Part
III, 1.03(a) means that, where the veteran's application
for benefits is incomplete, VA shall notify the veteran of
the evidence necessary to complete the application. Id. at
80. As there is no indication in the present case that the
veteran's application is incomplete, the Board finds that the
RO complied with 38 U.S.C.A. § 5103 and 1.03(a).
ORDER
Service connection for PTSD is denied.
MARK F. HALSEY
Member, Board of Veterans' Appeals